In the recent case of Gallop v Newport City Council, the Court of Appeal have reviewed the requirement for employers to have ‘knowledge’ of an employee’s disability. The Court made the point that an employer must make their own judgement on whether an employee is disabled. They cannot blindly rely on Occupational Health/Medical reports and are best advised to make an informed decision after asking ‘specific practical questions’ of the medical professional.
In the case, Mr Gallop was an established member of staff at the Council and, after around seven years of employment, he began complaining of stress and the associated symptoms. He had several long term sickness absences due to stress. Over a period of four years he had several different Occupational Health assessments, but two reports explicitly stated he was not disabled for the purposes of the Disability Discrimination Act (now Equality Act). The reports gave no specific reasoning for their conclusion. In 2008, after a return to work from another long period of absence, he was dismissed due to allegations of bullying.
Mr Gallop brought several claims but the relevant claims for this appeal were those of direct disability discrimination and a failure to make reasonable adjustments. However the Employment Tribunal concluded that his employer did not know, and could not reasonably have been expected to know, that he was disabled, thus leaving no liability for such claims. Mr Gallop challenged this verdict on appeal to the Court of Appeal.
The Court of Appeal concluded that the responsible employer should make its own judgement as to whether an employee is disabled or not. Indeed an employer cannot simply ‘rubber stamp’ a medical report without further enquiry. Thus the Tribunal should have questioned what else was in the mind of the employer and not solely allowed the employer to rely on occupational health reports. The case has been remitted for a rehearing to establish whether there was constructive knowledge by the Council.
Remember do not blindly agree with an Occupational Health/medical report. Please spend time to accurately brief an occupational health assessor and also ask the practical questions that will help an employer make an informed decision about disability. Always ask Occupational Health to justify their opinion on the evidence. This case confirms that best practice is for any medical report to be a collaborative process, where the employer must keep an eye on their legal responsibilities, and the occupational health assessor or medical professional can provide their medical opinion on the condition.